Licence Appeal Tribunal File Number: 23-011515/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Emmanuel Anibuali
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Sheaves
APPEARANCES:
For the Applicant:
Naman Nanda, Counsel
For the Respondent:
Ibrahim Farag, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1Emmanuel Anibuali, the applicant, was involved in an automobile accident on December 3, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3The applicant was 15 years old at the time of the accident. He was a passenger, in a vehicle that was side-swiped on the passenger-side.
ISSUES
4The issues in dispute are:
i. Are the applicant’s injuries minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $3,795.50 for chiropractic services of Mackenzie Medical Rehabilitation Centre in a treatment plan (“plan”) dated January 5, 2022?
iii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for chiropractic services of Mackenzie Medical Rehabilitation Centre submitted in a plan dated March 23, 2022?
iv. Is the applicant entitled to $2,023.03 for chiropractic services of Mackenzie Medical Rehabilitation Centre, submitted in a plan dated June 3, 2022?
v. Is the applicant entitled to $1,691.57 for chiropractic services of Mackenzie Medical Rehabilitation Centre, submitted in a plan dated June 30, 2022?
vi. Is the applicant entitled to $2,528.76 for physiotherapy services of Mackenzie Medical Rehabilitation Centre, submitted in a plan on December 21, 2022?
vii. Is the applicant entitled to $2,400.00 for a psychological assessment of Prime Health Care, submitted in a plan on June 9, 2023?
viii. Is the applicant entitled to $3,865.52 for psychological services of Prime Health Care, submitted in a plan on September 21, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has proven, on a balance of probabilities, that his injuries are not predominantly minor, because of psychological impairments. Therefore, he is not subject to the MIG limit.
6The applicant is entitled to $3,795.50 for chiropractic services, submitted in a plan dated January 5, 2022.
7The applicant is entitled to $200.00, for the balance of unapproved chiropractic services, submitted in a plan dated March 23, 2022.
8The applicant is not entitled to the chiropractic services submitted in a plan dated June 3, 2022.
9The applicant is not entitled to the chiropractic services submitted in a plan dated June 30, 2022.
10The applicant is entitled to $2,528.76 for physiotherapy services, submitted in a plan dated December 21, 2022.
11The applicant is not entitled to $2,400.00 for a psychological assessment, submitted in a plan dated June 9, 2023.
12The applicant is not entitled to $3,865.52 for psychological services, submitted in a plan dated September 21, 2023.
13The applicant is not entitled to an award.
14The applicant is entitled to interest on any overdue payments of benefits.
ANALYSIS
15Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
16An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
17The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
18The applicant has the burden of proving he is not in the MIG and is entitled to the benefits claimed on a balance of probabilities. The respondent does not have to prove that the applicant is not entitled to the benefits in dispute.
The applicant has a non-minor injury
19I find the applicant has established that his injuries do not fall within the MIG because of psychological impairments.
20The applicant claimed he should not be held in the MIG because of chronic pain, and psychological impairments. He relied upon the s. 25 assessment of Dr. Kershner, psychologist, dated August 19, 2023, and his ongoing reports of pain to treating practitioners.
21In her s. 25 assessment, Dr. Kershner diagnosed the applicant with a major depressive disorder, somatic symptom disorder with predominant pain, and an insomnia disorder. The diagnosis was made based on psychological testing. The testing indicated moderate levels of depression and anxiety, and significant symptoms of post-traumatic stress. Dr. Kershner confirmed that the testing was appropriate for adolescents aged 13 and older.
22Dr. Kershner reported that the applicant had ongoing difficulty with school and had failed some courses. He had not returned to his pre-accident chores, and sporting activities. He was no longer socializing with friends, or his siblings and was spending a lot of time isolated in his room.
23The respondent submitted that no weight should be given to Dr. Kershner’s psychological report, because she interviewed the applicant’s mother, and not the applicant. It said that its s.44 psychological assessment by Dr. Rubenstein should be preferred because he did interview the applicant. I was not persuaded by the respondent’s submissions regarding the psychological evidence.
24The respondent’s submissions that the applicant was not interviewed by Dr. Kershner are not accurate. It is clear upon reading the report that Dr. Kershner interviewed the applicant and his mother. This is stated in the report. The assessor also administered the psychological testing used to make the diagnoses on the applicant, not his mother.
25Given that the applicant was a minor at the time of the accident and the assessment, I am not persuaded that it was improper for the applicant’s mother to participate in the assessment to provide a collateral account of the applicant’s post-accident symptoms and behaviour. She was also involved in the accident and provided information about the applicant’s symptoms and daily life from the perspective of a parent and adult. It is not unusual for a parent to accompany their child to medical assessments, or to answer questions pertaining to their child at one and accordingly, I see no reason to discount Dr. Kershner’s opinion on this basis.
26The respondent also submitted that its s. 44 report of Dr. Rubenstein, psychologist, dated January 23, 2024, should be preferred because the applicant did not complete his testing during his s. 25 assessment. I found that the respondent’s submissions in this regard were misleading, as it appears to suggest that none of the questions or tests were completed by the applicant, when this was not the case.
27There was one test, geared towards assessing pessimism and the potential for suicide, that the applicant did not complete during his s. 25 assessment because he was experiencing illness on the day of the assessment. The applicant completed all the other tests administered by the assessor.
28Further, Dr. Rubenstein, did not provide a diagnosis for any psychological impairment of the applicant. The assessor suggested that the applicant’s test scores were unreliable, a finding he said was common in personal injury cases where applicants try to portray disability. The actual results of the other psychological tests were not disclosed.
29Dr. Rubenstein relied on the Structured Inventory of Malingered Symptomology (“SIMS”) test to invalidate all the applicant’s other psychological testing. I was not persuaded by this finding.
30Dr. Rubenstein did not confirm that the SIMS test was appropriate for adolescents. He did not provide any context for the test, including limitations for its application. Given the test was used to invalidate all the other testing performed on the applicant, I find that this information is important and relevant for me to consider accepting that opinion. Dr. Rubenstein did not point to any other evidence of malingering aside from the test itself.
31Dr. Rubenstein provided vague suggestions of why the applicant’s reported symptoms were unacceptable to him, such as over-endorsement of symptoms, and a suggestion that symptom magnification was a marked contribution to the results. I did not find the explanations were specific or compelling enough to suggest that the applicant is completely unreliable and that all his other testing and reported symptoms should be ignored.
32Dr. Rubenstein is the only health practitioner to suggest that the applicant over-exaggerated or inflated his symptoms and complaints. There is no other notation or evidence with the applicant’s medical records or assessments to suggest he was not genuine in his complaints at any point in time, including his other s. 44 assessment completed by Dr. Howard.
33Aside from the undisclosed test results, Dr. Rubenstein’s report of the applicant’s ongoing restrictions is similar to every other assessment or record, including the s. 44 general practitioner assessment of Dr. Howard. These records and reports say that the applicant reported ongoing limitations for performing his chores and playing sports he was engaged in before the accident. Dr. Rubenstein also noted that the applicant working less as a tutor.
34Dr. Rubenstein did not at any point in his report suggest that Dr. Kershner’s report, authored some six months prior to his own, was unreliable or deficient in any way.
35I was not persuaded by Dr. Rubenstein’s report which relied upon the SIMS test to disqualify all the applicant’s psychological testing. The report did not disclose the results of the testing that was completed. I find that Dr. Kershner’s report and opinion are more reliable because the results of all the psychological testing completed were disclosed in the report and utilized to render the opinion given.
36The respondent suggested that psychological symptoms alone are not sufficient to remove an applicant from the MIG. It relied upon Y.X.Y. v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). I do not find that this case is relevant.
37In X.Y.X. v. The Personal, the applicant submitted a plan completed by a psychologist to support that she had a psychological impairment. The psychologist had not conducted an assessment or provided a report for the adjudicator to consider. On this basis, the adjudicator found that reported symptoms were not sufficient on their own to remove the applicant from the MIG.
38In this case, there was a psychological assessment and testing was completed. Dr. Kershner’s report not only provides evidence of symptoms, it also provides diagnoses of the applicant’s psychological conditions that is based on testing.
39The respondent also argued that there is a lack of other medical evidence to support the findings of Dr. Kershner, and this should negate her findings.
40The applicant was a healthy teenager at the time of the accident. He did not have a family doctor. This is evidenced by the fact that aside from his treating clinics, he only went to a walk-in clinic for medical attention.
41Each time the applicant attended the walk-in clinic, he saw a different physician. In this context, I do not agree that the lack of support from a primary care physician would undermine Dr. Kershner’s findings and test results.
42Instead, I find there are ample reports of psychological distress in the rest of the medical evidence. For instance, psychological symptoms were noted in the disability certificate of Dr. Porco, chiropractor, in January 2022. They were listed as impairments in the treatment plans that are in dispute in this appeal. Emotional disturbance was listed as a barrier for recovery in the chiropractic plans in dispute. Sleep disturbance was indicated as a complaint from the very first post-accident visit with the chiropractor, and in many of the reports on file.
43Furthermore, there is a note from the walk-in clinic in November 2023 recommending weekly psychological therapy. This note was written less than two months before Dr. Rubenstein’s assessment.
44Based on the record, I find there is sufficient evidence of reported psychological symptoms and ongoing sleep impairments to support the findings of Dr. Kershner that the applicant sustained a psychological impairment warranting removal from the MIG.
45The applicant has convinced me, on a balance of probabilities, that he sustained psychological impairments in the accident. This means he does not have a minor injury and is not subject to the MIG.
The applicant must prove that the medical and rehabilitation benefits claimed are reasonable and necessary, on a balance of probabilities
46To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating that the benefit is reasonable and necessary because of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant is entitled to the plans for chiropractic treatment, dated January 5, 2022, and March 23, 2022
47I find the applicant is entitled to the plans for chiropractic services, dated January 5, 2022, and March 23, 2022.
48The first plan dated January 5, 2022, was proposed approximately one-month post-accident. It confirmed the applicant was having difficulty with bending, twisting, lifting, carrying, pulling, and prolonged sitting and standing. It says the applicant was having emotional and sleep disturbances as well. The plan recommended 18 sessions each of manual therapy, active therapy, and massage therapy.
49There is a Disability Certificate dated January 5, 2022, from Dr. Porco, chiropractor. It diagnosed neck sprain and muscle injury, thoracic, lumbar, and pelvis sprain, shoulder sprain, headache, sleep disorder, anxiety, nervousness, irritability, and anger.
50The applicant submits the January 5, 2022, plan is reasonable and necessary because it was recommended by a doctor at the walk-in clinic on December 20, 2021. He submitted that the goals of the treatment were to reduce pain, increase range of motion and strength, and support a return to modified work and activities of daily living.
51The March 23, 2022, plan confirmed that the applicant had some improvement with treatment, but his lower back pain was ongoing, and there were still deficits on range of motion testing. The applicant’s core endurance was said to be weak, and he was having ongoing sleep and emotional disturbances. The plan requested eight treatment sessions and a reassessment.
52The applicant submitted that the March 23, 2022, plan had similar treatment goals to the January 5, 2022, plan.
53The respondent relies on the s. 44 general practitioner report of Dr. Howard dated August 31, 2022. It submits Dr. Howard opined that both chiropractic treatment plans were not reasonable and necessary.
54The respondent submits the applicant has not met the burden of showing that the plans were reasonable and necessary.
55Firstly, the respondent’s assertion about the opinion of Dr. Howard is not accurate. Dr. Howard’s report does not say that the plans of January 5, 2022, and March 23, 2022, were not reasonable and necessary. He said the January plan was reasonable and necessary, but subject to the funding of the MIG. This tells me that the treatment was reasonable, it was the MIG monetary limit that was to be the basis of any denial.
56Dr. Howard found the applicant had tenderness in his parathoracic and paralumbar spinal muscles. He said there was loss of mobility for flexion and extension in the applicant’s thoracic and lumbar spine. There was also ongoing tenderness in the right knee. Myofascial back, right knee, and lower leg strain were listed as ongoing impairments caused by the accident, and still present in August 2022.
57Given these findings of Dr. Howard, and that the applicant is no longer bound by the monetary limits of the MIG, I find the plan is reasonable and necessary.
58Dr. Howard’s report does not address the March 2022, plan. This plan was for $1,300.00, and the respondent approved $1,100.00, leaving a balance of $200.00. Neither party has provided the respondents denial letter, nor have they explained why the balance was not approved in their submissions.
59At the time the March 2022 plan was written, the treating chiropractor confirmed the applicant had improved but was still reporting ongoing lower back pain with decreased range of motion. There is also evidence the applicant’s upper back and shoulder pain was improving with treatment leading up to the submission of the March 2022 plan, as detailed in the treatment records of the clinic
60I find that at the time of the March 23, 2022, plan, the remaining balance of $200.00 was reasonable and necessary. The applicant was improving with this treatment modality at the time the plan was written and still had ongoing impairments caused by the accident, as evidenced by the report of Dr. Howard in August 2022. The respondent also agreed that treatment of this nature, and, at this point in time, was necessary.
61I find that the applicant has established that the January 5, 2022, and March 23, 2022, plans for chiropractic treatment are reasonable and necessary.
The applicant is not entitled to the plans for chiropractic services, dated June 3, 2022 and June 30, 2022
62I find that the applicant has not shown he is entitled to the plans for chiropractic treatment dated June 3, 2022, and June 30, 2022.
63The applicant relies on the information in the plans to show they are reasonable and necessary. The goals of the plans are the same as the other disputed chiropractic plans from January and March 2022.
64The respondent again relies on the s. 44 report of Dr. Howard. Dr. Howard said that these two plans were not reasonable and necessary because the applicant was not improving with this type of treatment.
65In assessing the two June 2022 plans, I find Dr. Howard’s opinion is compelling. By June of 2022, the applicant had been receiving these same chiropractic and massage treatments for nearly six months. While he had initial improvement in his upper back and shoulders, he still had ongoing complaints in his lower back and leg at the time these plans were written. This evidence was in the chiropractic treatment records.
66The disputed plans did not show how additional rounds of the same treatment were going to result in further possible improvement. The goals of the plans and recommendations were the same. The applicant did not make any specific submissions about the plans, other than to summarize their contents.
67I am not convinced on a balance of probabilities, that the chiropractic treatment plans dated June 3, 2022, and June 30, 2022, are reasonable and necessary, based on the treatment records, and the content of the plans. There were no submissions on the goals of the plans and how those goals were to be achieved, given the amount of treatment that had already been provided.
68Instead, I have given weight to Dr. Howard’s opinion that the plans were not reasonable because they were no longer resulting in improvement of the applicant’s impairments.
The applicant is entitled to the plan for physiotherapy services, dated December 21, 2022
69I find the applicant has shown he is entitled to the plan for physiotherapy services dated December 21, 2022.
70The applicant relies on the recommendations for physiotherapy made by his treating physicians at the walk-in clinic, for example:
i. Dr. Maxwell suggested physiotherapy on December 21, 2021;
ii. Dr. Wolnick recommended physiotherapy and core strengthening on December 28, 2022;
iii. Dr. Rampton said the applicant should continue with physiotherapy in on August 22, 2023; and
iv. Dr. Kushnir said he requires ongoing physiotherapy on November 10, 2023.
71The respondent relies on Dr. Howard’s determination that the applicant was in the MIG. However, I find Dr. Howard did not consider this specific treatment plan for physiotherapy, and he gave no opinion about whether it was reasonable and necessary.
72At the time of his assessment in August 2022, Dr. Howard found that the applicant had ongoing physical impairment due to the accident. He said the applicant had loss of mobility in his thoracic and lumbar spine, and he diagnosed myofascial strain to the back, right knee, and lower leg.
73The respondent also points to some notations in the chiropractic records in January and February 2022, which it says suggest the applicant was reporting he had no pain. The respondent said the applicant reported this to the physiotherapist, but this is not accurate as he had not engaged in physiotherapy treatment at that point.
74I find the respondent’s submissions about the applicant’s complaints are not correct. The respondent submitted the applicant reported “no pain” at five treatment visits in January and February 2022. It says this shows further treatment was not reasonable and necessary. This is not what the records say at each of the visits.
75On some of the dates, the applicant was reporting pain, or less pain, or ongoing stiffness. When he said he had no pain in a visit, he was referring to his upper back and shoulders only, and he said there was still ongoing stiffness. This aligns with the plan, dated March 23, 2022, where the chiropractor reported that low back pain was still an ongoing issue, but there had been improvement of symptoms.
76I do not find the respondent’s submissions in this regard compelling. They are not an accurate reflection of the applicant’s complaints, nor do they negate the remainder of his medical records that were put before me, including Dr. Howard’s s. 44 report which found ongoing impairment in August 2022.
77Given Dr. Howard’s findings of ongoing impairment, and that each doctor the applicant saw at the walk-in clinic recommended he participate in physiotherapy, I find that physiotherapy treatment was reasonable and necessary.
78Neither the applicant nor the respondent made submissions about the costs associated with the plan. That issue appears to be uncontested, and there is no need for me to make a finding on the costs of the plan.
79The plan requests 14 sessions of treatment, which I consider to be a reasonable amount as an initial plan for physiotherapy because it would be sufficient to determine if it resulted in improvement of the applicant’s impairments. It also provides for a re-assessment, which I find reasonable and necessary to determine the effectiveness of the treatment.
80As a result, I find the applicant has shown he is entitled to the plan for physiotherapy treatment dated December 21, 2022.
The applicant is not entitled to the plans for a psychological assessment, dated June 9, 2023 or psychological services dated September 21, 2023
81I have found that the applicant sustained psychological impairments in the accident. Dr. Kershner diagnosed a major depressive disorder, somatic symptom disorder and an insomnia disorder.
82However, the applicant still has the burden of proving that the disputed treatment plans for a psychological assessment and psychological treatment are reasonable and necessary. In this case he did not do so.
83The applicant failed to submit the disputed plans with his submissions. In addition, he failed to make any submissions on the goods and services proposed in the plans or to discuss their contents, including the goals of treatment, and whether the overall costs of achieving them are reasonable.
84There is no information in the submissions of the parties, or any of the other evidence before me as to the goals of the plans, the number of proposed sessions for psychological treatment, or the costs of the plans. I am unable to determine if the costs of the plans align to the professional guidelines that govern the hourly rates of the service providers.
85The applicant submitted that the treatment is reasonable and necessary based on his impairments.
86Given there is no evidence of the goals, the goods and services requested, or the costs, or any other incidental costs that might have been included, I am unable to decide that the plans and associated costs are reasonable and necessary.
87The applicant did not meet the burden of establishing entitlement to these plans because he has not provided them in his submissions, nor made any submissions of substance on their contents.
Interest
88Interest applies on the payment of any overdue benefits awarded pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
Award
89The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
90The applicant has not proven he is entitled to an award.
91The applicant’s submissions simply state that the respondent unreasonably withheld benefits and did not give due consideration to the entire medical records in their possession.
92The respondent submitted that to be entitled to an award, an applicant must show that an insurer’s conduct was excessive, imprudent, stubborn, inflexible, and unyielding. It relied upon Macintosh and Intact Insurance Company, 2024 CanLII 10511 (ONLAT) in its submissions.
93I agree with the respondent’s submissions that the applicant has not shown that the respondent acted unreasonably, or that he is entitled to an award. I agree that the threshold to meet for a s. 10 award is high, and an award will not be payable simply because the respondent made an incorrect decision about the MIG.
ORDER
94For the reasons provided, I order as follows:
i. The applicant’s injuries do not fall within the MIG.
ii. The applicant is entitled to $3,795.50 for chiropractic services, submitted in a plan dated January 5, 2022.
iii. The applicant is entitled to the outstanding amount of $200.00 for chiropractic services, as submitted in a plan dated March 23, 2022.
iv. The applicant is not entitled to the plan for chiropractic services dated June 3, 2022.
v. The applicant is not entitled to the plan for chiropractic services dated June 30, 2022.
vi. The applicant is entitled to $2,528.76 for physiotherapy services, submitted in a plan dated December 1, 2022.
vii. The applicant is not entitled to $2,400.00 for a psychological assessment, submitted in a plan dated June 9, 2023.
viii. The applicant is not entitled to $3,865.52 for psychological services, submitted in a plan dated September 21, 2023.
ix. The applicant is entitled to interest on any overdue payments.
x. The applicant is not entitled to an award.
Released: September 8, 2025
Sarah Sheaves
Adjudicator